Subject:  LUJAN v. NATIONAL WILDLIFE FEDERATION, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



LUJAN, SECRETARY OF THE INTERIOR, et al. v. NATIONAL WILDLIFE FEDERATION et
al.

certiorari to the united states court of appeals for the district of
columbia circuit

No. 89-640.  Argued April 16, 1990--Decided June 27, 1990

The National Wildlife Federation (hereinafter respondent) filed this action
in the District Court against petitioners, the Director of the Bureau of
Land Management (BLM) and other federal parties, alleging that, in various
respects, they had violated the Federal Land Policy and Management Act of
1976 (FLPMA) and the National Environmental Policy Act of 1969 (NEPA) in
the course of administering the BLM's "land withdrawal review program," and
that the complained-of actions should be set aside because they were
"arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law" within the meaning of MDRV 10(e) of the Administrative
Procedure Act (APA), 5 U. S. C. MDRV 706.  Under the program, petitioners
make various types of decisions affecting the status of public lands and
their availability for private uses such as mining, a number of which
decisions were listed in an appendix to the complaint.  The court granted
petitioners' motion for summary judgment under Federal Rule of Civil
Procedure 56, holding that respondent lacked standing to seek judicial
review of petitioners' actions under the APA, MDRV 702.  The court ruled
that affidavits by two of respondent's members, Peterson and Erman,
claiming use of public lands "in the vicinity" of lands covered by two of
the listed decisions, were insufficient to confer standing as to those
particular decisions, and that, even if they had been adequate for that
limited purpose, they could not support respondent's attempted APA
challenge to each of the 1,250 or so individual actions effected under the
program.  The court rejected as untimely four more member affidavits
pertaining to standing, which were submitted after argument on the summary
judgment motion and in purported response to the District Court's
postargument request for additional briefing.  The Court of Appeals
reversed, holding that the Peterson and Erman affidavits were sufficient in
themselves, that it was an abuse of discretion not to consider the four
additional affidavits, and that standing to challenge the individual
decisions conferred standing to challenge all such decisions.

Held:

    1. The Peterson and Erman affidavits are insufficient to establish
respondent's MDRV 702 entitlement to judicial review as "[a] person . . .
adversely affected or aggrieved by agency action within the meaning of a
relevant statute."  Pp. 8-16.

    (a) To establish a right to relief under MDRV 702, respondent must
satisfy two requirements.  First, it must show that it has been affected by
some "agency action," as defined in MDRV 551(13).  See MDRV 701(b)(2).
Since neither the FLPMA nor NEPA provides a private right of action, the
"agency action" in question must also be "final agency action" under MDRV
704.  Second, respondent must prove that it is "adversely affected or
aggrieved" by that action "within the meaning of a relevant statute," which
requires a showing that the injury complained of falls within the "zone of
interests" sought to be protected by the FLPMA and NEPA.  Cf. Clarke v.
Securities Industry Assn., 479 U. S. 388, 396-397.  Pp. 8-10.

    (b) When a defendant moves for summary judgment on the ground that the
plaintiff has failed to establish a right to relief under MDRV 702, the
burden is on the plaintiff, under Rule 56(e), to set forth specific facts
(even though they may be controverted by the defendant) showing that there
is a genuine issue for trial.  Cf. Celotex Corp. v. Catrett, 477 U. S. 317,
322.  Where no such showing is made, the defendant is entitled to judgment
as a matter of law.  Id., at 323.  Pp. 10-11.

    (c) The specific facts alleged in the two affidavits do not raise a
genuine issue of fact as to whether respondent has a right to relief under
MDRV 702.  It may be assumed that the allegedly affected interests set
forth in the affidavits--"recreational use and aesthetic enjoyment"--are
sufficiently related to respondent's purposes that respondent meets MDRV
702's requirements if any of its members do.  Moreover, each affidavit can
be read to complain of a particular "agency action" within MDRV 551's
meaning; and whatever "adverse effect" or "aggrievement" is established by
the affidavits meets the "zone of interests" test, since "recreational use
and aesthetic enjoyment" are among the sorts of interests that the FLPMA
and NEPA are designed to protect.  However, there has been no showing that
those interests of Peterson and Erman were actually "affected" by
petitioners' actions, since the affidavits alleged only that the affiants
used unspecified lands "in the vicinity of" immense tracts of territory,
only on some portions of which, the record shows, mining activity has
occurred or probably will occur by virtue of the complained-of actions.
The Court of Appeals erred in ruling that the District Court had to presume
specific facts sufficient to support the general allegations of injury to
the affiants, since such facts are essential to sustaining the complaint
and, under Rule 56(e), had to be set forth by respondent.  United States v.
Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669,
distinguished.  Pp. 11-16.

    2. Respondent's four additional member affidavits did not establish its
right to MDRV 702 review.  Pp. 16-24.

    (a) The affidavits are insufficient to enable respondent to challenge
the entirety of petitioners' "land withdrawal review program."  That term
does not refer to a single BLM order or regulation, or even to a completed
universe of particular BLM orders and regulations, but is simply the name
by which petitioners have occasionally referred to certain continuing (and
thus constantly changing) BLM operations regarding public lands, which
currently extend to about 1,250 individual decisions and presumably will
include more actions in the future.  Thus, the program is not an
identifiable "agency action" within MDRV 702's meaning, much less a "final
agency action" under MDRV 704.  Absent an explicit congressional
authorization to correct the administrative process on a systemic level,
agency action is not ordinarily considered "ripe" for judicial review under
the APA until the scope of the controversy has been reduced to manageable
proportions, and its factual components fleshed out, by concrete action
that harms or threatens to harm the complainant.  It may well be, due to
the scope of the "program," that the individual BLM actions indentified in
the affidavits will not be "ripe" for challenge until some further agency
action or inaction more immediately harming respondent occurs.  But it is
entirely certain that the flaws in the entire "program" cannot be laid
before the courts for wholesale cor rection under the APA simply because
one of them that is ripe for re- view adversely affects one of respondent's
members.  Respondent must seek such programmatic improvements from the BLM
or Congress.  Pp. 16-20.

    (b) The District Court did not abuse its discretion in declining to
admit the supplemental affidavits.  Since the affidavits were filed in
response to the court's briefing order following the summary judgment
hearing, they were untimely under, inter alia, Rule 6(d), which provides
that "opposing affidavits may be served not later than 1 day before the
hearing."  Although Rule 6(b) allows a court, "in its discretion," to
extend any filing deadline "for cause shown," a post-deadline extension
must be "upon motion made," and is permissible only where the failure to
meet the deadline "was the result of excusable neglect."  Here, respondent
made no motion for extension nor any showing of "cause."  Moreover, the
failure to timely file did not result from "excusable neglect," since the
court's order setting the hearing on the summary judgment motion put
respondent on notice that its right to sue was at issue, and that (absent
proper motion) the time for filing additional evidentiary materials was, at
the latest, the day before the hearing.  Even if the court could have
overcome these obstacles to admit the affidavits, it was not compelled, in
exercising its discretion, to do so.  Pp. 20-24.

    3. Respondent is not entitled to seek MDRV 702 review of petitioners'
actions in its own right.  The brief affidavit submitted to the District
Court to show that respondent's ability to fulfill its informational and
advocacy functions was "adversely affected" by petitioners' alleged failure
to provide adequate information and opportunities for public participation
with respect to the land withdrawal review program fails to identify any
particular "agency action" that was the source of respondent's alleged
injuries, since that program is not an identifiable action or event.  Thus,
the affidavit does not set forth the specific facts necessary to survive a
Rule 56 motion.  Pp. 24-26.

278 U. S. App. D. C. 320, 878 F. 2d 422, reversed.

Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J.,
and White, O'Connor, and Kennedy, JJ., joined.  Blackmun, J., filed a
dissenting opinion, in which Brennan, Marshall, and Stevens, JJ., joined.

------------------------------------------------------------------------------




Subject: 89-640--OPINION, LUJAN v. NATIONAL WILDLIFE FEDERATION

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 89-640




MANUEL LUJAN, Jr., SECRETARY OF THE INTERIOR, et al., PETITIONERS v.
NATIONAL WILD- LIFE FEDERATION et al.

on writ of certiorari to the united states court of appeals for district of
columbia circuit

[June 27, 1990]



    Justice Scalia delivered the opinion of the Court.

    In this case we must decide whether respondent, the National Wildlife
Federation (hereinafter respondent), is a proper party to challenge actions
of the Federal Government relating to certain public lands.
I
    Respondent filed this action in 1985 in the United States District
Court for the District of Columbia against petitioners the United States
Department of the Interior, the Secretary of the Interior, and the Director
of the Bureau of Land Management (BLM), an agency within the Department.
In its amended complaint, respondent alleged that petitioners had violated
the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744,
43 U. S. C. MDRV 1701 et seq. (1982 ed.), the National Environmental Policy
Act of 1969 (NEPA), 83 Stat. 852, 42 U. S. C. MDRV 4321 et seq., and MDRV
10(e) of the Administrative Procedure Act (APA), 5 U. S. C. MDRV 706, in
the course of administering what the complaint called the "land withdrawal
review program" of the BLM.  Some background information concerning that
program is necessary to an understanding of this dispute.
    In various enactments, Congress empowered United States citizens to
acquire title to, and rights in, vast portions of federally owned land.
See, e. g., Rev. Stat. MDRV 2319, 30 U. S. C. MDRV 22 et seq. (Mining Law
of 1872); 41 Stat. 437, as amended, 30 U. S. C. MDRV 181 et seq. (Mineral
Lands Leasing Act of 1920).  Congress also provided means, however, for the
Executive to remove public lands from the operation of these statutes.  The
Pickett Act, 36 Stat. 847, 43 U. S. C. MDRV 141 (1970 ed.), repealed, 90
Stat. 2792 (1976), authorized the President "at any time in his discretion,
temporarily [to] withdraw from settlement, location, sale, or entry any of
the public lands of the United States, . . . and reserve the same for
water-power sites, irrigation, classification of lands, or other public
purposes . . . ."  Acting under this and under the Taylor Grazing Act of
1934, ch. 865, 48 Stat. 1269, as amended, 43 U. S. C. MDRV 315f, which gave
the Secretary of the Interior authority to "classify" public lands as
suitable for either disposal or federal retention and management, President
Franklin Roosevelt withdrew all unreserved public land from disposal until
such time as they were classified.  Exec. Order No. 6910, Nov. 26, 1934;
Exec. Order No. 6964, Feb. 5, 1935.  In 1936, Congress amended MDRV 7 of
the Taylor Grazing Act to authorize the Secretary of the Interior "to
examine and classify any lands" withdrawn by these orders and by other
authority as "more valuable or suitable" for other uses "and to open such
lands to entry, selection, or location for disposal in accordance with such
classification under applicable public-land laws."  49 Stat. 1976, 43 U. S.
C. MDRV 315f.  The amendment also directed that "[s]uch lands shall not be
subject to disposition, settlement, or occupation until after the same have
been classified and opened to entry."  Ibid.  The 1964 Classification and
Multiple Use Act, 78 Stat. 986-988, 43 U. S. C. 15 1411-1418 (1970 ed.)
(expired 1970), gave the Secretary further authority to classify lands for
the purpose of either disposal or retention by the Federal Government.
    Management of the public lands under these various laws became chaotic.
The Public Land Law Review Commission, established by Congress in 1964 to
study the matter, 78 Stat. 982, determined in 1970 that "virtually all" of
the country's public domain, see Public Land Law Review Commission, One
Third of the Nation's Land 52 (1970)--about one-third of the land within
the United States, see id., at 19--had been withdrawn or classified for
retention; that it was difficult to determine "the extent of existing
Executive withdrawals and the degree to which withdrawals overlap each
other," id., at 52; and that there were inadequate records to show the
purposes of withdrawals and the permissible public uses.  Ibid.
Accordingly, it recommended that "Congress should provide for a careful
review of (1) all Executive withdrawals and reservations, and (2) BLM
retention and disposal classifications under the Classification and
Multiple Use Act of 1964."  Ibid.
    In 1976, Congress passed the FLPMA, which repealed many of the
miscellaneous laws governing disposal of public land, 43 U. S. C. MDRV 1701
et seq. (1982 ed.), and established a policy in favor of retaining public
lands for multiple use management.  It directed the Secretary to "prepare
and maintain on a continuing basis an inventory of all public lands and
their resource and other values," 43 U. S. C. MDRV 1711(a) (1982 ed.),
required land use planning for public lands, and established criteria to be
used for that purpose, MDRV 1712.  It provided that existing
classifications of public lands were subject to review in the land use
planning process, and that the Secretary could "modify or terminate any
such classification consistent with such land use plans."  MDRV 1712(d).
It also authorized the Secretary to "make, modify, extend or revoke"
withdrawals.  MDRV 1714(a).  Finally it directed the Secretary, within 15
years, to review withdrawals in existence in 1976 in 11 western States,
MDRV 1714(l)(1), and to "determine whether, and for how long, the
continuation of the existing withdrawal of the lands would be, in his
judgment, consistent with the statutory objectives of the programs for
which the lands were dedicated and of the other relevant programs," MDRV
1714 (l)(2).  The activities undertaken by the BLM to comply with these
various provisions constitute what respondent's amended complaint styles
the BLM's "land withdrawal review program," which is the subject of the
current litigation.
    Pursuant to the directives of the FLPMA, the petitioners engage in a
number of different types of administrative action with respect to the
various tracts of public land within the United States.  First, the BLM
conducts the review and recommends the determinations required by 43 U. S.
C. MDRV 1714(l) with respect to withdrawals in 11 western States.  The law
requires the Secretary to "report his recommendations to the President,
together with statements of concurrence or nonconcurrence submitted by the
heads of the departments or agencies which administer the lands"; the
President must in turn submit this report to the Congress, together with
his recommendation "for action by the Secretary, or for legislation."  43
U. S. C. MDRV 1714(l)(2) (1982 ed.).  The Secretary has submitted a number
of reports to the President in accordance with this provision.
    Second, the Secretary revokes some withdrawals under MDRV 204(a) of the
Act, which the Office of the Solicitor has interpreted to give the
Secretary the power to process proposals for revocation of withdrawals made
during the "ordinary course of business."  U. S. Dept. of the Interior,
Memorandum from the Office of the Solicitor, Oct. 30, 1980.  These
revocations are initiated in one of three manners: An agency or department
holding a portion of withdrawn land that it no longer needs may file a
notice of intention to relinquish the lands with the BLM.  Any member of
the public may file a petition requesting revocation.  And in the case of
lands held by the BLM, the BLM itself may intitiate the revocation
proposal.  App. 56-57.  Withdrawal revocations may be made for several
reasons.  Some are effected in order to permit sale of the land; some for
record-clearing purposes, where the withdrawal designation has been
superseded by congressional action or overlaps with another withdrawal
designation; some in order to restore the land to multiple use management
pursuant to MDRV 102(a)(7) of the FLPMA, 43 U. S. C. MDRV 1701(a)(7) (1982
ed.).  App. 142-145.
    Third, the Secretary engages in the ongoing process of classifying
public lands, either for multiple-use management, 43 CFR Part 2420 (1988),
for disposal, 43 CFR Part 2430 (1988), or for other uses.  Classification
decisions may be initiated by petition, 43 CFR Part 2450 (1988), or by the
BLM itself, 43 CFR Part 2460 (1988).  Regulations promulgated by the
Secretary prescribe the procedures to be followed in the case of each type
of classification determination.
II
    In its complaint, respondent averred generally that the
reclassification of some withdrawn lands and the return of others to the
public domain would open the lands up to mining activities, thereby
destroying their natural beauty.  Respondent alleged that petitioners, in
the course of administering the Nation's public lands, had violated the
FLPMA by failing to "develop, maintain, and, when appropriate, revise land
use plans which provide by tracts or areas for the use of the public
lands," 43 U. S. C. MDRV 1712(a) (1982 ed.); failing to submit
recommendations as to withdrawals in the 11 western States to the
President, MDRV 1714(l); failing to consider multiple uses for the disputed
lands, MDRV 1732(a), focusing inordinately on such uses as mineral
exploitation and development; and failing to provide public notice of
decisions, 15 1701(a)(5), 1712(c)(9), 1712(f), and 1739(e).  Respondent
also claimed that petitioners had violated NEPA, which requires federal
agencies to "include in every recommendation or report on . . . major
Federal actions significantly affecting the quality of the human
environment, a detailed statement by the responsible official on . . . the
environmental impact of the proposed action."  42 U. S. C. MDRV 4332(2)(C).
Finally, respondent alleged that all of the above actions were "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law," and should therefore be set aside pursuant to MDRV 10(e) of the APA,
5 U. S. C. MDRV 706.  Appended to the amended complaint was a schedule of
specific land status determinations, which the complaint stated had been
"taken by defendants since January 1, 1981"; each was identified by a
listing in the Federal Register.
    In December 1985, the District Court granted respondent's motion for a
preliminary injunction prohibiting petitioners from "[m]odifying,
terminating or altering any withdrawal, classification, or other
designation governing the protection of lands in the public domain that was
in effect on January 1, 1981," and from "[t]aking any action inconsistent"
with any such withdrawal, classification, or designation.  App. to Pet. for
Cert. 185a.  In a subsequent order, the court denied petitioners' motion
under Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the
complaint for failure to demonstrate standing to challenge petitioners'
actions under the APA, 5 U. S. C. MDRV 702.  App. to Pet. for Cert. 183a.
The Court of Appeals affirmed both orders.  National Wildlife Federation v.
Burford, 266 U. S. App. D. C. 241, 835 F. 2d 305 (1987).  As to the motion
to dismiss, the Court of Appeals found sufficient to survive the motion the
general allegation in the amended complaint that respondent's members used
environmental resources that would be damaged by petitioners' actions.  See
id., at 248, 835 F. 2d, at 312.  It held that this allegation, fairly read
along with the balance of the complaint, both identified particular
land-status actions that respondent sought to challenge--since at least
some of the actions complained of were listed in the complaint's appendix
of Federal Register references--and asserted harm to respondent's members
attributable to those particular actions.  Id., at 249, 835 F. 2d, at 313.
To support the latter point, the Court of Appeals pointed to the affidavits
of two of respondent's members, Peggy Kay Peterson and Richard Erman, which
claimed use of land "in the vicinity" of the land covered by two of the
listed actions.  Thus, the Court of Appeals concluded, there was "concrete
indication that [respondent's] members use specific lands covered by the
agency's Program and will be adversely affected by the agency's actions,"
and the complaint was "sufficiently specific for purposes of a motion to
dismiss."  Ibid.  On petitions for rehearing, the Court of Appeals vacated
the District Court's injunction, National Wildlife Federation v. Burford,
269 U. S. App. D. C. 271, 844 F. 2d 889 (1988), but stood by its denial of
the motion to dismiss and directed the parties and the District Court "to
proceed with this litigation with dispatch."  Id., at 272, 844 F. 2d, at
890.
    Back before the District Court, petitioners again claimed, this time by
means of a motion for summary judgment under Rule 56 of the Federal Rules
of Civil Procedure (which motion had been outstanding during the
proceedings before the Court of Appeals), that respondent had no standing
to seek judicial review of petitioners' actions under the APA.  After
argument on this motion, and in purported response to the court's
postargument request for additional briefing, respondent submitted four
additional member affidavits pertaining to the issue of standing.  The
District Court rejected them as untimely, and granted the Rule 56 motion to
dismiss.  It noted that neither its earlier decision nor the Court of
Appeals' affirmance controlled the question, since both pertained to a
motion under Rule 12(b).  It found the Peterson and Erman affidavits
insufficient to withstand the Rule 56 motion, even as to judicial review of
the particular classification decisions to which they pertained.  And even
if they had been adequate for that limited purpose, the court said, they
could not support respondent's attempted APA challenge to "each of the 1250
or so individual classification terminations and withdrawal revocations"
effected under the land withdrawal review program.  National Wildlife
Federation v. Burford, 699 F. Supp. 327, 332 (DC 1988).
    This time the Court of Appeals reversed.   National Wildlife Federation
v. Burford, 278 U. S. App. D. C. 320, 878 F. 2d 422 (1989).  It both found
the Peterson and Erman affidavits sufficient in themselves, and held that
it was an abuse of discretion not to consider the four additional
affidavits as well. {1}  The Court of Appeals also concluded that standing
to challenge individual classification and withdrawal decisions conferred
standing to challenge all such decisions under the land withdrawal review
program.  We granted certiorari.  493 U. S. ---- (1990).
III


A
    We first address respondent's claim that the Peterson and Erman
affidavits alone suffice to establish respondent's right to judicial review
of petitioners' actions.  Respondent does not contend that either the FLPMA
or NEPA provides a private right of action for violations of its
provisions.  Rather, respondent claims a right to judicial review under
MDRV 10(a) of the APA, which provides:

"A person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a relevant
statute, is entitled to judicial review thereof."  5 U. S. C. MDRV 702.


This provision contains two separate requirements.  First, the person
claiming a right to sue must identify some "agency action" that affects him
in the specified fashion; it is judicial review "thereof" to which he is
entitled.  The meaning of "agency action" for purposes of MDRV 702 is set
forth in 5 U. S. C. MDRV 551(13), see 5 U. S. C. MDRV 701(b)(2) ("For the
purpose of this chapter . . . `agency action' ha[s] the meanin[g] given . .
. by section 551 of this title"), which defines the term as "the whole or a
part of an agency rule, order, license, sanction, relief, or the equivalent
or denial thereof, or failure to act," 5 U. S. C. MDRV 551(13).  When, as
here, review is sought not pursuant to specific authorization in the
substantive statute, but only under the general review provisions of the
APA, the "agency action" in question must be "final agency action."  See 5
U. S. C. MDRV 704 ("Agency action made reviewable by statute and final
agency action for which there is no other adequate remedy in a court are
subject to judicial review" (emphasis added).)
    Second, the party seeking review under MDRV 702 must show that he has
"suffer[ed] legal wrong" because of the challenged agency action, or is
"adversely affected or aggrieved" by that action "within the meaning of a
relevant statute."  Respondent does not assert that it has suffered "legal
wrong," so we need only discuss the meaning of "adversely affected or
aggrieved . . . within the meaning of a relevant statute."  As an original
matter, it might be thought that one cannot be "adversely affected or
aggrieved within the meaning" of a statute unless the statute in question
uses those terms (or terms like them)--as some pre-APA statutes in fact did
when conferring rights of judicial review.  See, e. g., Federal
Communications Act of 1934, MDRV 402(b)(2), 48 Stat. 1093, as amended, 47
U. S. C. MDRV 402(b)(6) (1982 ed.).  We have long since rejected that
interpretation, however, which would have made the judicial review
provision of the APA no more than a restatement of pre-existing law.
Rather, we have said that to be "adversely affected or aggrieved . . .
within the meaning" of a statute, the plaintiff must establish that the
injury he complains of (his aggrievement, or the adverse effect upon him)
falls within the "zone of interests" sought to be protected by the
statutory provision whose violation forms the legal basis for his
complaint.  See Clarke v. Securities Industry Assn., 479 U. S. 388, 396-397
(1987).  Thus, for example, the failure of an agency to comply with a
statutory provision requiring "on the record" hearings would assuredly have
an adverse effect upon the company that has the contract to record and
transcribe the agency's proceedings; but since the provision was obviously
enacted to protect the interests of the parties to the proceedings and not
those of the reporters, that company would not be "adversely affected
within the meaning" of the statute.
B
    Because this case comes to us on petitioners' motion for summary
judgment, we must assess the record under the standard set forth in Rule 56
of the Federal Rules of Civil Procedure.  Rule 56(c) states that a party is
entitled to summary judgment in his favor "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of
law."  Rule 56(e) further provides:

"When a motion for summary judgment is made and supported as provided in
this rule, an adverse party may not rest upon the mere allegations or
denials of the adverse party's pleading, but the adverse party's response,
by affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial.  If the
adverse party does not so respond, summary judgment, if appropriate, shall
be entered against the adverse party."


    As we stated in Celotex Corp. v. Catrett, 477 U. S. 317 (1986), "the
plain language of Rule 56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear the
burden of proof at trial."  477 U. S., at 322.  Where no such showing is
made, "[t]he moving party is `entitled to a judgment as a matter of law'
because the nonmoving party has failed to make a sufficient showing on an
essential element of her case with respect to which she has the burden of
proof."  Id., at 323.
    These standards are fully applicable when a defendant moves for summary
judgment, in a suit brought under MDRV 702, on the ground that the
plaintiff has failed to show that he is "adversely affected or aggrieved by
agency action within the meaning of a relevant statute."  The burden is on
the party seeking review under MDRV 702 to set forth specific facts (even
though they may be controverted by the Government) showing that he has
satisfied its terms.  Sierra Club v. Morton, 405 U. S. 727, 740 (1972).
Celotex made clear that Rule 56 does not require the moving party to negate
the elements of the nonmoving party's case; to the contrary, "regardless of
whether the moving party accompanies its summary judgment motion with
affidavits, the motion may, and should, be granted so long as whatever is
before the District Court demonstrates that the standard for the entry of
summary judgment, as set forth in Rule 56(c), is satisfied."  477 U. S., at
323.
C
    We turn, then, to whether the specific facts alleged in the two
affidavits considered by the District Court raised a genuine issue of fact
as to whether an "agency action" taken by petitioners caused respondent to
be "adversely affected or aggrieved . . . within the meaning of a relevant
statute."  We assume, since it has been uncontested, that the allegedly
affected interests set forth in the affidavits--"recreational use and
aesthetic enjoyment"--are sufficiently related to the purposes of
respondent association that respondent meets the requirements of MDRV 702
if any of its members do.  Hunt v. Washington State Apple Advertising
Comm'n, 432 U. S. 333 (1977).
    As for the "agency action" requirement, we think that each of the
affidavits can be read, as the Court of Appeals believed, to complain of a
particular "agency action" as that term is defined in MDRV 551.  The
parties agree that the Peterson affidavit, judging from the geographic area
it describes, must refer to that one of the BLM orders listed in the
appendix to the complaint that appears at 49 Fed. Reg. 19904-19905 (1984),
an order captioned W-6228 and dated April 30, 1984, terminating the
withdrawal classification of some 4500 acres of land in that area.  See, e.
g., Brief for Petitioners 8-10.  The parties also appear to agree, on the
basis of similar deduction, that the Erman affidavit refers to the BLM
order listed in the appendix that appears at 47 Fed. Reg. 7232-7233 (1982),
an order captioned Public Land Order 6156 and dated February 18, 1982.
    We also think that whatever "adverse effect" or "aggrieve ment" is
established by the affidavits was "within the meaning of the relevant
statute"--i. e., met the "zone of interests" test.  The relevant statute,
of course, is the statute whose violation is the gravamen of the
complaint--both the FLPMA and NEPA.  We have no doubt that "recreational
use and aesthetic enjoyment" are among the sorts of interests those
statutes were specifically designed to protect.  The only issue, then, is
whether the facts alleged in the affidavits showed that those interests of
Peterson and Erman were actually affected.
    The Peterson affidavit averred:

"My recreational use and aesthetic enjoyment of federal lands, particularly
those in the vicinity of South Pass- Green Mountain, Wyoming have been and
continue to be adversely affected in fact by the unlawful actions of the
Bureau and the Department.  In particular, the South Pass-Green Mountain
area of Wyoming has been opened to the staking of mining claims and oil and
gas leasing, an action which threatens the aesthetic beauty and wildlife
habitat potential of these lands."  App. to Pet. for Cert. 191a.


Erman's affidavit was substantially the same as Peterson's, with respect to
all except the area involved; he claimed use of land "in the vicinity of
Grand Canyon National Part, the Arizona Strip (Kanab Plateau), and the
Kaibab National Forest."  Id., at 187a.
    The District Court found the Peterson affidavit inadequate for the
following reasons:

"Peterson . . . claims that she uses federal lands in the vicinity of the
South Pass-Green Mountain area of Wyoming for recreational purposes and for
aesthetic enjoyment and that her recreational and aesthetic enjoyment has
been and continues to be adversely affected as a result of the decision of
BLM to open it to the staking of mining claims and oil and gas leasing. . .
.  This decision [W-6228] opened up to mining approximately 4500 acres
within a two million acre area, the balance of which, with the exception of
2000 acres, has always been open to mineral leasing and mining. . . .
There is no showing that Peterson's recreational use and enjoyment extends
to the particular 4500 acres covered by the decision to terminate
classification to the remainder of the two million acres affected by the
termination.  All she claims is that she uses lands `in the vicinity.'  The
affidavit on its face contains only a bare allegation of injury, and fails
to show specific facts supporting the affiant's allegation."  699 F. Supp.,
at 331 (emphasis in original).


    The District Court found the Erman affidavit "similarly flawed."

"The magnitude of Erman's claimed injury stretches the imagination. . . .
[T]he Arizona Strip consists of all lands in Arizona north and west of the
Colorado River on approximately 5.5 million acres, an area one-eighth the
size of the State of Arizona.  Furthermore, virtually the entire Strip is
and for many years has been open to uranium and other metalliferous mining.
The revocation of withdrawal [in Public Land Order 6156] concerned only
non-metalliferous mining in the western one-third of the Arizona Strip, an
area possessing no potential for non- metalliferous mining."  Id., at 332.


    The Court of Appeals disagreed with the District Court's assessment as
to the Peterson affidavit (and thus found it unnecessary to consider the
Erman affidavit) for the following reason:

"If Peterson was not referring to lands in this 4500-acre affected area,
her allegation of impairment to her use and enjoyment would be meaningless,
or perjurious. . . .   [T]he trial court overlooks the fact that unless
Peterson's language is read to refer to the lands affected by the Program,
the affidavit is, at best, a meaningless document.
    At a minimum, Peterson's affidavit is ambiguous regarding whether the
adversely affected lands are the ones she uses.  When presented with
ambiguity on a motion for summary judgment, a District Court must resolve
any factual issues of controversy in favor of the non-moving party . . . .
This means that the District Court was obliged to resolve any factual
ambiguity in favor of NWF, and would have had to assume, for the purposes
of summary judgment, that Peterson used the 4500 affected acres."  278 U.
S. App. D. C., at 329, 878 F. 2d, at 431.


    That is not the law.  In ruling upon a Rule 56 motion, "a District
Court must resolve any factual issues of controversy in favor of the
non-moving party" only in the sense that, where the facts specifically
averred by that party contradict facts specifically averred by the movant,
the motion must be denied.  That is a world apart from "assuming" that
general averments embrace the "specific facts" needed to sustain the
complaint.  As set forth above, Rule 56(e) provides that judgment "shall be
entered" against the nonmoving party unless affidavits or other evidence
"set forth specific facts showing that there is a genuine issue for trial."
The object of this provision is not to replace conclusory allegations of
the complaint or answer with conclusory allegations of an affidavit.  Cf.
Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 249 (1986) ("[T]he
plaintiff could not rest on his allegations of a conspiracy to get to a
jury without `any significant probative evidence tending to support the
complaint' "), quoting First National Bank of Arizona v. Cities Service
Co., 391 U. S. 253, 290 (1968).  Rather, the purpose of Rule 56 is to
enable a party who believes there is no genuine dispute as to a specific
fact essential to the other side's case to demand at least one sworn
averment of that fact before the lengthy process of litigation continues.
    At the margins there is some room for debate as to how "specific" must
be the "specific facts" that Rule 56(e) requires in a particular case.  But
where the fact in question is the one put in issue by the MDRV 702
challenge here--whether one of respondent's members has been, or is
threatened to be, "adversely affected or aggrieved" by Government
action--Rule 56(e) is assuredly not satisfied by averments which state only
that one of respondent's members uses unspecified portions of an immense
tract of territory, on some portions of which mining activity has occurred
or probably will occur by virtue of the governmental action.  It will not
do to "presume" the missing facts because without them the affidavits would
not establish the injury that they generally allege.  That converts the
operation of Rule 56 to a circular promenade: plaintiff's complaint makes
general allegation of injury; defendant contests through Rule 56 existence
of specific facts to support injury; plaintiff responds with affidavit
containing general allegation of injury, which must be deemed to constitute
averment of requisite specific facts since otherwise allegation of injury
would be unsupported (which is precisely what defendant claims it is).
    Respondent places great reliance, as did the Court of Appeals, upon our
decision in United States v. Students Challenging Regulatory Agency
Procedures (SCRAP), 412 U. S. 669 (1973).  The SCRAP opinion, whose
expansive expression of what would suffice for MDRV 702 review under its
particular facts has never since been emulated by this Court, is of no
relevance here, since it involved not a Rule 56 motion for summary judgment
but a Rule 12(b) motion to dismiss on the pleadings.  The latter, unlike
the former, presumes that general allegations embrace those specific facts
that are necessary to support the claim.  Conley v. Gibson, 355 U. S. 41,
45-46 (1957).
IV
    We turn next to the Court of Appeals' alternative holding that the four
additional member affidavits proffered by respondent in response to the
District Court's briefing order established its right to MDRV 702 review of
agency action.
A
    It is impossible that the affidavits would suffice, as the Court of
Appeals held, to enable respondent to challenge the entirety of
petitioners' so-called "land withdrawal review program."  That is not an
"agency action" within the meaning of MDRV 702, much less a "final agency
action" within the meaning of MDRV 704.  The term "land withdrawal review
program" (which as far as we know is not derived from any authoritative
text) does not refer to a single BLM order or regulation, or even to a
completed universe of particular BLM orders and regulations.  It is simply
the name by which petitioners have occasionally referred to the continuing
(and thus constantly changing) operations of the BLM in reviewing
withdrawal revocation applications and the classifications of public lands
and developing land use plans as required by the FLPMA.  It is no more an
identifiable "agency action"--much less a "final agency action"--than a
"weapons procurement program" of the Department of Defense or a "drug
interdiction program" of the Drug Enforcement Administration.  As the
District Court explained, the "land withdrawal review program" extends to,
currently at least, "1250 or so individual classification terminations and
withdrawal revocations."  699 F. Supp., at 332. {2}
    Respondent alleges that violation of the law is rampant within this
program--failure to revise land use plans in proper fashion, failure to
submit certain recommendations to Congress, failure to consider multiple
use, inordinate focus upon mineral exploitation, failure to provide
required public notice, failure to provide adequate environmental impact
statements.  Perhaps so.  But respondent cannot seek wholesale improvement
of this program by court decree, rather than in the offices of the
Department or the halls of Congress, where programmatic improvements are
normally made.  Under the terms of the APA, respondent must direct its
attack against some particular "agency action" that causes it harm.  Some
statutes permit broad regulations to serve as the "agency action," and thus
to be the object of judicial review directly, even before the concrete
effects normally required for APA review are felt.  Absent such a
provision, however, a regulation is not ordinarily considered the type of
agency action "ripe" for judicial review under the APA until the scope of
the controversy has been reduced to more manageable proportions, and its
factual components fleshed out, by some concrete action applying the
regulation to the claimant's situation in a fashion that harms or threatens
to harm him.  (The major exception, of course, is a substantive rule which
as a practical matter requires the plaintiff to adjust his conduct
immediately.  Such agency action is "ripe" for review at once, whether or
not explicit statutory review apart from the APA is provided.  See Abbott
Laboratories v. Gardner, 387 U. S. 136, 152-154 (1967); Gardner v. Toilet
Goods Assn., Inc., 387 U. S. 167, 171-173 (1967).  Cf. Toi- let Goods
Assn., Inc. v. Gardner, 387 U. S. 158, 164-166 (1967).)
    In the present case, the individual actions of the BLM identified in
the six affidavits can be regarded as rules of general applicability (a
"rule" is defined in the APA as agency action of "general or particular
applicability and future effect," 5 U. S. C. MDRV 551(4) (emphasis added))
announcing, with respect to vast expanses of territory that they cover, the
agency's intent to grant requisite permission for certain activities, to
decline to interfere with other activities, and to take other particular
action if requested.  It may well be, then, that even those individual
actions will not be ripe for challenge until some further agency action or
inaction more immediately harming the plaintiff occurs. {3}  But it is at
least entirely certain that the flaws in the entire "program"--consisting
principally of the many individual actions referenced in the complaint, and
presumably actions yet to be taken as well-- cannot be laid before the
courts for wholesale correction under the APA, simply because one of them
that is ripe for review adversely affects one of respondent's members. {4}
    The case-by-case approach that this requires is understandably
frustrating to an organization such as respondent, which has as its
objective across-the-board protection of our Nation's wildlife and the
streams and forests that support it.  But this is the traditional, and
remains the normal, mode of operation of the courts.  Except where Congress
explicitly provides for our correction of the administrative process at a
higher level of generality, we intervene in the administration of the laws
only when, and to the extent that, a specific "final agency action" has an
actual or immediately threatened effect.  Toilet Goods Assn., 387 U. S., at
164-166.  Such an intervention may ultimately have the effect of requiring
a regulation, a series of regulations, or even a whole "program" to be
revised by the agency in order to avoid the unlawful result that the court
discerns.  But it is assuredly not as swift or as immediately far-reaching
a corrective process as those interested in systemic improvement would
desire.  Until confided to us, however, more sweeping actions are for the
other Branches.
B
    The Court of Appeals' reliance upon the supplemental affidavits was
wrong for a second reason: the District Court did not abuse its discretion
in declining to admit them.  Petitioners filed their motion for summary
judgment in September 1986; respondent filed an opposition but did not
submit any new evidentiary materials at that time.  On June 27, 1988, after
the case had made its way for the first time through the Court of Appeals,
the District Court announced that it would hold a hearing on July 22 on
"the outstanding motions for summary judgment," which included petitioners'
motion challenging respondent's MDRV 702 standing.  The hearing was held
and, as noted earlier, the District Court issued an order directing
respondent to file "a supplemental memorandum regarding the issue of its
standing to proceed."  Record, Doc. No. 274.  Although that plainly did not
call for the submission of new evidentiary materials, it was in purported
response to this order, on August 22, 1988, that respondent submitted
(along with the requested legal memorandum) the additional affidavits.  The
only explanation for the sub mission (if it can be called an explanation)
was contained in a footnote to the memorandum, which simply stated that
"NWF now has submitted declarations on behalf of other members of NWF who
have been injured by the challenged actions of federal defendants."
Record, Doc. No. 278, p. 18, n. 21.  In its November 4, 1988 ruling
granting petitioners' motion, the District Court rejected the additional
affidavits as "untimely and in violation of [the court's briefing] Order."
699 F. Supp., at 328, n. 3.
    Respondent's evidentiary submission was indeed untimely, both under
Rule 56, which requires affidavits in opposition to a summary judgment
motion to be served "prior to the day of the hearing," Fed. R. Civ. P.
56(c), and under Rule 6(d), which states more generally that "[w]hen a
motion is supported by affidavit, . . . opposing affidavits may be served
not later than 1 day before the hearing, unless the court permits them to
be served at some other time."  Rule 6(b) sets out the proper approach in
the case of late filings:

"When by these rules or by a notice given thereunder or by order of court
an act is required or allowed to be done at or within a specified time, the
court for cause shown may at any time in its discretion (1) with or without
motion or notice order the period enlarged if request therefor is made
before the expiration of the period originally prescribed or as extended by
a previous order, or (2) upon motion made after the expiration of the
specified period permit the act to be done where the failure to act was the
result of excusable neglect . . . ."


This provision not only specifically confers the "discretion" relevant to
the present issue, but also provides the mechanism by which that discretion
is to be invoked and exercised.  First, any extension of a time limitation
must be "for cause shown."  Second, although extensions before expiration
of the time period may be "with or without motion or notice," any
post-deadline extension must be "upon motion made," and is permissible only
where the failure to meet the deadline "was the result of excusable
neglect."  Thus, in order to receive the affidavits here, the District
Court would have had to regard the very filing of the late document as the
"motion made" to file it;  {5} it would have had to interpret "cause shown"
to mean merely "cause," since respondent made no "showing" of cause at all;
and finally, it would have had to find as a substantive matter that there
was indeed "cause" for the late filing, and that the failure to file on
time "was the result of excusable neglect."
    This last substantive obstacle is the greatest of all.  The Court of
Appeals presumably thought it was overcome because "the papers on which the
trial court relied were two years old by the time it requested supplemental
memoranda" and because "there was no indication prior to the trial court's
request that [respondent] should have doubted the adequacy of the
affidavits it had already submitted."  278 U. S. App. D. C., at 331, 878 F.
2d, at 433.  We do not understand the relevance of the first point; the
passage of so long a time as two years suggests, if anything, that
respondent had more than the usual amount of time to prepare its response
to the motion, and was more than moderately remiss in waiting until after
the last moment.  As to the suggestion of unfair surprise: a litigant is
never justified in assuming that the court has made up its mind until the
court expresses itself to that effect, and a litigant's failure to buttress
its position because of confidence in the strength of that position is
always indulged at the litigant's own risk.  In any case, whatever
erroneous expectations respondent may have had were surely dispelled by the
District Court's order in June 1988 announcing that the hearing on
petitioners' motion would be held one month later.  At least when that
order issued, respondent was on notice that its right to sue was at issue,
and that (absent proper motion) the time for filing any additional
evidentiary materials was, at the latest, the day before the hearing.
    Perhaps it is true that the District Court could have overcome all the
obstacles we have described--apparent lack of a motion, of a showing, and
of excusable neglect--to admit the affidavits at issue here.  But the
proposition that it was compelled to receive them--that it was an abuse of
discretion to reject them--cannot be accepted.
V
    Respondent's final argument is that we should remand this case for the
Court of Appeals to decide whether respondent may seek MDRV 702 review of
petitioners' actions in its own right, rather than derivatively through its
members.  Specifically, it points to allegations in the amended complaint
that petitioners unlawfully failed to publish regulations, to invite public
participation, and to prepare an environmental impact statement with
respect to the "land withdrawal review program" as a whole.  In order to
show that it is a "person . . . adversely affected or aggrieved" by these
failures, it submitted to the District Court a brief affidavit (two pages
in the record) by one of its vice-presidents, Lynn A. Greenwalt, who stated
that respondent's mission is to "inform its members and the general public
about conservation issues," and to advocate improvements in laws and
administrative practices "pertaining to the protection and enhancement of
federal lands," Pet. App. 193a-194a; and that its ability to perform this
mission has been impaired by the petitioners' failure "to provide adequate
information and opportunities for public participation with respect to the
Land Withdrawal Review Program."  Id., at 194a.  The District Court found
this affidavit insufficient to establish respondent's right to seek
judicial review, since it was "conclusory and completely devoid of specific
facts."  699 F. Supp., at 330.  The Court of Appeals, having reversed the
District Court on the grounds discussed above, did not address the issue.
    We agree with the District Court's disposition.  Even assuming that the
affidavit set forth "specific facts."  Fed. R. Civ. P. 56(e), adequate to
show injury to respondent through the deprivation of information; and even
assuming that providing information to organizations such as respondent was
one of the objectives of the statutes allegedly violated, so that
respondent is "aggrieved within the meaning" of those statutes;
nonetheless, the Greenwalt affidavit fails to identify any particular
"agency action" that was the source of these injuries.  The only sentences
addressed to that point are as follows:

    "NWF's ability to meet these obligations to its members has been
significantly impaired by the failure of the Bureau of Land Management and
the Department of the Interior to provide adequate information and
opportunities for public participation with respect to the Land Withdrawal
Review Program.  These interests of NWF have been injured by the actions of
the Bureau and the Department and would be irreparably harmed by the
continued failure to provide meaningful opportunities for public input and
access to information regarding the Land Withdrawal Review Program."  App.
to Pet. for Cert. 194a.


As is evident, this is even more deficient than the Peterson and Erman
affidavits, which contained geographical descriptions whereby at least an
action as general as a particular classification decision could be
identified as the source of the grievance.  As we discussed earlier, the
"Land Withdrawal Review Program" is not an identifiable action or event.
With regard to alleged deficiencies in providing information and permitting
public participation, as with regard to the other illegalities alleged in
the complaint, respondent cannot demand a general judicial review of the
BLM's day-to-day operations.  The Greenwalt affidavit, like the others,
does not set forth the specific facts necessary to survive a Rule 56
motion.
*   *   *
    For the foregoing reasons, the judgment of the Court of Appeals is
reversed.
It is so ordered.


 
 
 
 
 

------------------------------------------------------------------------------
1
    As an additional basis for its conclusion, the Court of Appeals held
that the earlier panel's finding that the Peterson and Erman affidavits
were sufficient to establish respondent's right to sue was the "law of the
case."  We do not address this conclusion, as the earlier panel's ruling
does not, of course, bind this Court.  Messenger v. Anderson, 225 U. S.
436, 444 (1912).

2
    Contrary to the apparent understanding of the dissent, we do not
contend that no "land withdrawal review program" exists, any more than we
would contend that no weapons procurement program exists.  We merely assert
that it is not an identifiable "final agency action" for purposes of the
APA.  If there is in fact some specific order or regulation, applying some
particular measure across-the-board to all individual classification
terminations and withdrawal revocations, and if that order or regulation is
final, and has become ripe for review in the manner we discuss subsequently
in text, it can of course be challenged under the APA by a person adversely
affected--and the entire "land withdrawal review program," insofar as the
content of that particular action is concerned, would thereby be affected.
But that is quite different from permitting a generic challenge to all
aspects of the "land withdrawal review program," as though that itself
constituted a final agency action.

3
    Under the Secretary's regulations, any person seeking to conduct mining
operations that will "cause a cumulative surface disturbance" of 5 acres or
more must first obtain approval of a plan of operations.  43 CFR MDRV
3809.1-4 (1988).  Mining operations that cause surface disturbance of less
than 5 acres do not require prior approval, but prior notice must be given
to the district office of the BLM.  MDRV 3809.1-3.  Neither approval nor
notification is required only with respect to "casual use operations," 43
CFR MDRV 3809.1-2, defined as "activities ordinarily resulting in only
negligible disturbance of the Federal lands and resources."  MDRV 3809.0-5.
(Activities are considered "casual" if "they do not involve the use of
mechanized earth moving equipment or explosives or do not involve the use
of motorized vehicles in areas designated as closed to off-road vehicles .
. . ."  Ibid.)  Thus, before any mining use ordinarily involving more than
"negligible disturbance" can take place, there must occur either agency
action in response to a submitted plan or agency inaction in response to a
submitted notice.
    In one of the four new affidavits, Peggy Peterson, one of the original
affiants, states that a corporation has filed a mine permit application
with the BLM covering a portion of the land to which her original affidavit
pertained.  App. to Brief in Opposition for Respondent National Wildlife
Federation 16.  If that permit is granted, there is no doubt that agency
action ripe for review will have occurred; nor any doubt that, in the
course of an otherwise proper court challenge, affiant Peterson, and
through her respondent, would be able to call into question the validity of
the classification order authorizing the permit.  However, before the grant
of such a permit, or (when it will suffice) the filing of a notice to
engage in mining activities, or (when only "negligible disturbance" will
occur) actual mining of the land, it is impossible to tell where or whether
mining activities will occur.  Indeed, it is often impossible to tell from
a classification order alone whether mining activities will even be
permissible.  As explained in the uncontested affidavit of the BLM's
Assistant Director of Land Resources:

"The lands may be subject to another withdrawal of comparable scope or they
may be subject to classification segregations tantamount to such a
withdrawal.  In that case, the lands would not be opened to the operation
of the public land laws so that the removal of one of the withdrawals has
no practical effect.  Another reason why there may not be any change is
that before the revocation occurred, the lands may have been transferred
into private ownership.  Consequently, the withdrawal revocation amounts to
nothing more than a paper transaction . . . .  In the alternative, a
revoked withdrawal may open the lands to the operation of the public land
and mineral laws. . . .  Some withdrawal revocations are made without prior
knowledge as to what subsequent disposition may be made of the lands.
After the lands are opened, they might be transferred out of federal
ownership by sale, exchange, or some other discretionary mode of disposal,
not anticipated when the withdrawal was revoked.  These subsequent
discretionary actions require separate and independent decisionmaking that,
obviously, are divorced from the prior revocation decision.  Environmental
and other management concerns and public participation are taken into
account in relation to the post-revocation decisionmaking."  Affidavit of
Frank Edwards, August 18, 1985, App. 61-62.

4
    Nothing in this is contrary to our opinion in Automobile Workers v.
Brock, 477 U. S. 274 (1986), cited by the Court of Appeals.  That opinion
did not discuss, and the respondent United States did not rely upon, the
requirements of 5 U. S. C. MDRV 702 and our ripeness jurisprudence in cases
such as Abbott Laboratories v. Gardner, 387 U. S. 136 (1967); Gardner v.
Toilet Goods Assn., Inc., 387 U. S. 167 (1967); and Toilet Goods Assn.,
Inc. v. Gardner, 387 U. S. 158 (1967).  The only challenge made and
decided, with respect to the individuals' right to sue, relied upon 19 U.
S. C. MDRV 2311(d), which according to the United States made entertainment
of that suit " `contrary to Congress's incorporation of the state system
into the administration of the Trade Act, and an affront to the integrity
and authority of the state courts.' "  477 U. S., at 283, quoting Brief for
Respondent in Automobile Workers, No. 84-1777, p. 16.

5
    The dissent asserts that a footnote in respondent's reply memorandum to
the District Court was a "motion" within the meaning of Rule 6(b)(2), and
was so obviously so that the District Court committed reversible error in
failing to construe it that way.  Post, at 11-12, and n. 10.  We cannot
agree.  Rule 6(b) establishes a clear distinction between "requests" and
"motions," and the one cannot be converted into the other without violating
its provisions--or at least cannot be converted on the basis of such lax
criteria that conversion would be not only marginally permissible but
positively mandatory in the present case.  Rule 6(b)(1) allows a court
("for cause shown" and "in its discretion") to grant a "request" for an
extension of time, whether the request is made "with or without motion or
notice," provided the request is made before the time for filing expires.
After the time for filing has expired, however, the court (again "for cause
shown" and "in its discretion") may extend the time only "upon motion."  To
treat all post-deadline "requests" as "motions" (if indeed any of them can
be treated that way) would eliminate the distinction between pre- and post-
deadline filings that the Rule painstakingly draws.  Surely the
post-deadline "request," to be even permissibly treated as a "motion," must
contain a high degree of formality and precision, putting the opposing
party on notice that a motion is at issue and that  he therefore ought to
respond.  The request here had not much of either characteristic.  As for
formality, it was not even made in a separate filing or in a separate
appearance before the court, but was contained in a single sentence at the
end of the first paragraph of one of the 18 single-spaced footnotes in a
20-page memorandum of law.  Our district judges must read footnotes with
new care if they are to be reversed for failing to recognize motions buried
in this fashion.  And as for precision, the request not only did not ask
for any particular extension of time (7 days, 30 days), it did not
specifically ask for an extension of time at all, but merely said that
respondent "should be given adequate opportunity to supplement the record."
Even this, moreover, was not requested (much less moved for)
unconditionally, but only "[i]f the court intends to reverse its prior
ruling [regarding NWF standing]."  We think it quite impossible to agree
with the dissent that the district judge not only might treat this request
as a motion, but that he was compelled to do so.





Subject: 89-640--DISSENT, LUJAN v. NATIONAL WILDLIFE FEDERATION

 


    SUPREME COURT OF THE UNITED STATES


No. 89-640




MANUEL LUJAN, Jr., SECRETARY OF THE INTERIOR, et al., PETITIONERS v.
NATIONAL WILD- LIFE FEDERATION et al.

on writ of certiorari to the united states court of appeals for district of
columbia circuit

[June 27, 1990]



    Justice Blackmun, with whom Justice Brennan, Justice Marshall, and
Justice Stevens join, dissenting.
    In my view, the affidavits of Peggy Kay Peterson and Richard Loren
Erman, in conjunction with other record evidence before the District Court
on the motions for summary judgment, were sufficient to establish the
standing of the National Wildlife Federation (Federation or NWF) to bring
this suit.  I also conclude that the District Court abused its discretion
by refusing to consider supplemental affidavits filed after the hearing on
the parties' cross-motions for summary judgment.  I therefore would affirm
the judgment of the Court of Appeals.
I
    The Federation's asserted injury in this case rested upon its claim
that the Government actions challenged here would lead to increased mining
on public lands; that the mining would result in damage to the environment;
and that the recreational opportunities of NWF's members would consequently
be diminished.  Abundant record evidence supported the Federation's
assertion that on lands newly opened for mining, mining in fact would
occur. {1}  Similarly, the record furnishes ample support for NWF's
contention that mining activities can be expected to cause severe
environmental damage to the affected lands. {2}  The District Court held,
however, that the Federation had not adequately identified particular
members who were harmed by the consequences of the Government's actions.
Although two of NWF's members expressly averred that their recreational
activities had been impaired, the District Court concluded that these
affiants had not identified with sufficient precision the particular sites
on which their injuries occurred.  The majority, like the District Court,
holds that the averments of Peterson and Erman were insufficiently specific
to withstand a motion for summary judgment.  Although these affidavits were
not models of precision, I believe that they were adequate at least to
create a genuine issue of fact as to the organization's injury.
    As the Court points out, the showing (whether as to standing or the
merits) required to overcome a motion for summary judgment is more
extensive than that required in the context of a motion to dismiss.  The
principal difference is that in the former context evidence is required,
while in the latter setting the litigant may rest upon the allegations of
his complaint.  See Celotex Corp. v. Catrett, 477 U. S. 317, 324 (1986)
(Rule 56(e) "requires the nonmoving party to go beyond the pleadings").  In
addition, Rule 56(e) requires that the party opposing summary judgment
"must set forth specific facts showing that there is a genuine issue for
trial" (emphasis added).  Thus, Courts of Appeals have reiterated that
"conclusory" allegations unsupported by "specific" evidence will be
insufficient to establish a genuine issue of fact. {3}
    The requirement that evidence be submitted is satisfied here: the
Federation has offered the sworn statements of two of its members.  There
remains the question whether the allegations in these affidavits were
sufficiently precise to satisfy the requirements of Rule 56(e).  The line
of demarcation between "specific" and "conclusory" allegations is hardly a
bright one.  But, to my mind, the allegations contained in the Peterson and
Erman affidavits, in the context of the record as a whole, were adequate to
defeat a motion for summary judgment.  These affidavits, as the majority
acknowledges, were at least sufficiently precise to enable Bureau of Land
Management (BLM) officials to identify the particular termination orders to
which the affiants referred.  See ante, at 11-12.  And the affiants averred
that their "recreational use and aesthetic enjoyment of federal lands . . .
have been and continue to be adversely affected in fact by the unlawful
actions of the Bureau and the Department."  App. to Pet. for Cert. 188a
(Erman affidavit), 191a (Peterson affidavit).  The question, it should be
emphasized, is not whether the NWF has proved that it has standing to bring
this action, but simply whether the materials before the District Court
established "that there is a genuine issue for trial," see Rule 56(e),
concerning the Federation's standing.  In light of the principle that "[o]n
summary judgment the inferences to be drawn from the underlying facts
contained in [evidentiary] materials must be viewed in the light most
favorable to the party opposing the motion," United States v. Diebold,
Inc., 369 U. S. 654, 655 (1962), I believe that the evidence before the
District Court raised a genuine factual issue as to NWF's standing to sue.
    No contrary conclusion is compelled by the fact that Peterson alleged
that she uses federal lands "in the vicinity of South Pass-Green Mountain,
Wyoming," App. to Pet. for Cert. 191a, rather than averring that she uses
the precise tract that was recently opened to mining.  The agency itself
has repeatedly referred to the "South Pass-Green Mountain area" in
describing the region newly opened to mining. {4}  Peterson's assertion
that her use and enjoyment of federal lands have been adversely affected by
the agency's decision to permit more extensive mining is, as the Court of
Appeals stated, National Wildlife Federation v. Burford, 278 U. S. App. D.
C. 320, 329, 878 F. 2d 422, 431 (1989), "meaningless, or perjurious" if the
lands she uses do not include those harmed by mining undertaken pursuant to
termination order W-6228. {5}  To read particular assertions within the
affidavit in light of the document as a whole is, as the majority might put
it, "a world apart" from "presuming" facts that are neither stated nor
implied simply because without them the plaintiff would lack standing.  The
Peterson and Erman affidavits doubtless could have been more artfully
drafted, but they definitely were sufficient to withstand the Government's
summary judgment motion.
II
    I also conclude that the District Court abused its discretion in
refusing to consider the supplemental affidavits filed by NWF after the
hearing on the summary judgment motion. {6}  The court's decision abruptly
derailed the Federation's lawsuit after three years of proceedings
involving massive time and expense.  The District Court and Court of
Appeals both had concluded that NWF's claims were sufficiently substantial
to warrant the entry of a nationwide injunction.  Whatever the ultimate
merits of the Federation's claims, litigation of this magnitude should not
be aborted on technical grounds if that result legitimately can be avoided.
The majority's approach reflects an insufficient appreciation both of the
realities of complex litigation and of the admonition that the Federal
Rules of Civil Procedure "shall be construed to secure the just, speedy,
and inexpensive determination of every action."  Rule 1.
    That a requirement is "technical" does not, of course, mean that it
need not be obeyed.  And an appeal to the "spirit" of the Federal Rules is
an insufficient basis for ignoring the import of their text.  If the Rules
imposed an absolute deadline for the submission of evidentiary materials,
the District Court could not be faulted for strictly enforcing that
deadline, even though the result in a particular case might be unfortunate.
But, as the Court acknowledges, the Rules expressly permit the District
Court to exercise discretion in deciding whether affidavits in opposition
to a summary judgment motion may be submitted after the hearing. {7}  Once
the District Court's power to accept untimely affidavits is recognized, the
question whether that power should be exercised in a particular instance
must be answered by reference to the explanation for the litigant's
omission and the purposes the Rules are designed to serve.  In my view, NWF
showed adequate cause for its failure to file the supplemental affidavits
prior to the hearing.  Moreover, the organization's untimely filing in no
way disserved the purposes of Rule 56(c), and the Government suffered no
prejudice as a consequence of the delay.  Under these circumstances, I
believe that the District Court's refusal to consider these submissions
constituted an abuse of discretion.
    The Federal Rules require that affidavits in opposition to a motion
ordinarily must be served at least one day prior to the hearing; the Rules
provide, however, that the affidavits may be filed at a later time "where
the failure to act was the result of excusable neglect."  Rule 6(b); see n.
7, supra.  Prior to the July 22, 1988, hearing on the parties'
cross-motions for summary judgment, NWF had been assured repeatedly that
its prior submissions were sufficient to establish its standing to sue.  In
its memorandum opinion granting the Federation's motion for a preliminary
injunction, the District Court stated: "We continue to find irreparable
injury to plaintiff and reaffirm plaintiff's standing to bring this
action."  Mem. Op. 3 (Feb. 10, 1986).
    Later that year the Government sought additional discovery on the
question of standing.  NWF sought to quash discovery, arguing that "[t]he
Court should bar any additional discovery on this issue because (1) it has
already found that plaintiff has standing; (2) plaintiff has already
produced affidavits which demonstrate standing and therefore any additional
discovery would be unreasonably cumulative, duplicative, burdensome and
expensive within the meaning of Rule 26(c)(1); and (3) contrary to the
government defendants' apparent theory, plaintiff need not demonstrate
injury as to each and every action that is part of the program."
Memorandum of Points and Authorities in Support of Plaintiff's Motion To
Quash and for a Protective Order 5-6 (July 1, 1986).  In the alternative,
NWF argued that if additional discovery on standing was to be ordered, it
should be confined to the requirement that a limited number of additional
affidavits be submitted.  Id., at 22.  The District Court on July 14, 1986,
granted in full the Federation's motion to quash and ordered "that no
further discovery of plaintiff or its members, officers, employees, agents,
servants, or attorneys shall be permitted until subsequent order of this
court, if any."  App. to Pet. for Cert. 170a-171a.  When the District
Court's grant of a preliminary injunction was subjected to appellate
review, the Court of Appeals concluded that the Peterson and Erman
affidavits "provide a concrete indication that the Federation's members use
specific lands covered by the agency's Program and will be adversely
affected by the agency's actions."  National Wildlife Federation v.
Burford, 266 U. S. App. D. C. 241, 249, 835 F. 2d 305, 313 (1987). {8}  The
majority's statement that "a litigant is never justified in assuming that
the court has made up its mind until the court expresses itself to that
effect," ante, at 23, is therefore simply irrelevant to the present case:
the District Court and the Court of Appeals repeatedly had indicated that
the Federation had offered sufficient evidence of its standing.
    Nor did the District Court's order of June 27, 1988, scheduling a
motion hearing for the following July 22, place NWF on notice that its
claim of standing might be reconsidered.  That order made clear that the
hearing would consider the summary judgment motions of both the Government
and the Federation.  The principal Government submission relevant to the
hearing was the Defendants' Memorandum in Opposition to Plaintiff's Motion
for Summary Judgment and in Support of Defendants' Motion for Summary
Judgment and/or for Dissolution of the Preliminary Injunction Issued on
February 10, 1986; that Memorandum was filed on September 12, 1986.  This
86-page Memorandum included only 912 pages devoted to standing, and half of
that discussion set forth the Government's claim that no broad programmatic
challenge could succeed even if the Peterson and Erman affidavits
adequately alleged injury from Government decisions as to particular tracts
of land.  Moreover, even the attack on the Peterson and Erman affidavits
did not purport to show that summary judgment for the Government should be
entered on the ground that the Federation lacked standing.  Rather, the
Government argued principally that summary judgment for NWF would be
inappropriate because a genuine factual dispute existed as to the
Federation's standing to sue.  See Defendants' Memorandum, at 45-47.  In
fact, the 86-page Memorandum included only two sentences arguing that the
Government should be awarded summary judgment on standing grounds.  Id., at
11-12, 85.  The District Court's decision to schedule a hearing on the
parties' cross-motions for summary judgment provided no hint that previous
assurances concerning standing were open to reconsideration. {9}
    Certainly the Federation could have submitted additional evidentiary
materials in support of its claim of standing, even though it had no reason
to believe that further submissions were necessary.  But it would hardly
enhance the efficiency of the adjudicative process to encourage litigants
to reargue questions previously settled in their favor.  In my view, NWF
established sufficient cause for its failure to submit the supplemental
affidavits prior to the hearing. {10}
    Moreover, the District Court's refusal to consider the additional
submissions in this case did not significantly advance the interests that
Rule 56(c) is designed to serve.  The Rule requires that affidavits in
opposition to a motion for summary judgment must be served "prior to the
day of hearing."  The Courts of Appeals consistently have recognized,
however, that "Rule 56 does not necessarily contemplate an oral hearing.
Rather, 10-day advance notice to the adverse party that the motion and all
materials in support of or in opposition to the motion will be taken under
advisement by the trial court as of a certain day satisfies the notice and
hearing dictates of Rule 56."  Moore v. State of Florida, 703 F. 2d 516,
519 (CA11 1983). {11}  Rule 56(c)'s requirement that a summary judgment
motion be filed 10 days in advance of a scheduled hearing serves to ensure
that the nonmoving party is afforded adequate notice of the motion.
Similarly, the requirement that opposing affidavits be submitted prior to
the day of the hearing reflects the fact that the District Court may rule
on the summary judgment motion at the hearing or at any time thereafter;
submission of affidavits prior to that day is thus essential if the moving
party is to be assured the opportunity to respond at a time when a response
is meaningful.  The requirement also allows the District Court to establish
a deadline by which time all evidence and arguments must be submitted;
thereafter, the court may deliberate with the assurance that no subsequent
filings will alter the terms of the dispute.
    These are pressing concerns when the hearing on a summary judgment
motion represents the parties' last opportunity to set forth their legal
arguments.  In the present case, however, the District Court concluded the
July 22, 1988, hearing by requesting supplemental briefing on the issue of
standing. {12}  NWF's supplemental affidavits, filed on August 22, as an
attachment to its legal memorandum, were submitted at a time when the
Government had ample opportunity to respond.  (Indeed, the opportunity to
respond here--10 days--was far greater than would have been the case if NWF
had filed (timely) affidavits the day before the hearing and no
supplemental briefing had been allowed.)  The affidavits, moreover, were
filed well before the time when the case was to be taken under advisement.
The record in this case is voluminous, currently filling six large boxes;
consideration of five more affidavits would not have added significantly to
the complexity of the issues before the District Court.  Under these
circumstances, submission of the supplemental affidavits neither disserved
the purposes of the Rule nor prejudiced the Government in any respect.
    The District Court discussed none of these factors in explaining its
refusal to consider the supplemental affidavits.  Indeed, the District
Court offered no justification at all for its action beyond the assertion
that the affidavits were untimely. {13}  Similarly, the Court today fails
to assess the District Court's action by reference to the excuse for NWF's
untimely filing or the absence of prejudice to the Government.  The
District Court and today's majority fail to recognize the guiding principle
of the Federal Rules of Civil Procedure, the principle that procedural
rules should be construed pragmatically, so as to ensure the just and
efficient resolution of legal disputes.  Some provisions of the Rules strip
the District Courts of discretion, and the courts have no choice but to
enforce these requirements with scrupulous precision. {14}  But where the
Rules expressly confer a range of discretion, a District Court may abuse
its authority by refusing to take account of equitable concerns, even where
its action violates no express command.  In my view, such an abuse of
discretion occurred here.
III
    In part IV-A, ante, at 16, the majority sets forth a long and abstract
discussion of the scope of relief that might have been awarded had the
Federation made a sufficient showing of injury from environmental damage to
a particular tract of land.  Since the majority concludes in other portions
of its opinion that the Federation lacks standing to challenge any of the
land-use decisions at issue here, it is not clear to me why the Court
engages in the hypothetical inquiry contained in Part IV-A.  In any event,
I agree with much of the Court's discussion, at least in its general
outline.  The Administrative Procedure Act permits suit to be brought by
any person "adversely affected or aggrieved by agency action."  5 U. S. C.
MDRV 702.  In some cases the "agency action" will consist of a rule of
broad applicability; and if the plaintiff prevails, the result is that the
rule is invalidated, not simply that the court forbids its application to a
particular individual.  Under these circumstances a single plaintiff, so
long as he is injured by the rule, may obtain "programmatic" relief that
affects the rights of parties not before the court.  On the other hand, if
a generally lawful policy is applied in an illegal manner on a particular
occasion, one who is injured is not thereby entitled to challenge other
applications of the rule.
    Application of these principles to the instant case does not turn on
whether, or how often, the Bureau's land-management policies have been
described as a "program."  {15}  In one sense, of course, there is no
question that a "program" exists.  Everyone associated with this lawsuit
recognizes that the BLM, over the past decade, has attempted to develop and
implement a comprehensive scheme for the termination of classifications and
withdrawals.  The real issue is whether the actions and omissions that NWF
contends are illegal are themselves part of a plan or policy.  For example:
if the agency had published a regulation stating that an Environmental
Impact Statement should never be developed prior to the termination of a
classification or withdrawal, NWF could challenge the regulation (which
would constitute an "agency action").  If the reviewing court then held
that the statute required a pre-termination EIS, the relief (invalidation
of the rule) would directly affect tracts other than the ones used by
individual affiants.  At the other extreme, if the applicable BLM
regulation stated that an EIS must be developed, and NWF alleged that the
administrator in charge of South Pass/Green Mountain had inexplicably
failed to develop one, NWF should not be allowed (on the basis of the
Peterson affidavit) to challenge a termination in Florida on the ground
that an administrator there made the same mistake.
    The majority, quoting the District Court, characterizes the Bureau's
land management program as " `1250 or so individual classification
terminations and withdrawal revocations.' "  Ante, at 17; see 699 F. Supp.,
at 332.  The majority offers no argument in support of this conclusory
assertion, and I am far from certain that the characterization is an
accurate one.  Since this issue bears on the scope of the relief ultimately
to be awarded should the plaintiff prevail, rather than on the jurisdiction
of the District Court to entertain the suit, I would allow the District
Court to address the question on remand. {16}
IV
    Since I conclude that the Peterson and Erman affidavits provided
sufficient evidence of NWF's standing to withstand a motion for summary
judgment, and that the District Court abused its discretion by refusing to
consider the Federation's supplemental affidavits, I would affirm the
judgment of the Court of Appeals.  I respectfully dissent.

 
 
 
 
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1
    Prior to the District Court's entry of the preliminary injunction, 406
mining claims had been staked in the South Pass-Green Mountain area alone.
App. 119.  An exhibit filed by the Government indicated that over 7200
claims had been filed in 12 Western States.  Affidavit of Joseph Martyak
(April 11, 1986) Exh. 1.

2
    A Bureau of Land Management draft of a Resource Management
Plan/Environmental Impact Statement for the Lander, Wyo., Resource Area
stated: "[I]n the Green Mountain Management Unit . . . significant
long-term impacts to elk and mule deer herds could occur from habitat
losses caused by oil and gas activities over the next 60 years. . . .  In
the South Pass Management Unit, significant acreages of lodgepole pine
forest and aspen conifer woodland habitat types could be disturbed, which
would cause significant long-term impacts to moose and elk. . . .  If gold
mining activities continue to erode these high-value habitats, trout
fisheries, the Lander moose herd, the beaver pond ecosystems, and the
populations of many other wildlife species would suffer significant
negative effects."  Draft RMP/EIS 226-228 (Exh. 3 to Defendant-Intervenors'
Reply to Plaintiff's Opposition to Defendants' Motions for Stay Pending
Appeal (May 14, 1986)).
    A BLM Mineral Report issued June 17, 1982, concluded that mining and
associated activities "could have an adverse impact on crucial moose
habitat, deer habitat, some elk habitat, and a variety of small game and
bird species.  Improvements at campgrounds, as well as land in the
immediate vicinity, could either be damaged or destroyed.  These activities
could make it difficult for the BLM to manage the forest production and
harvesting in the South Pass area.  Historical and cultural resources which
have and have not been identified could be either damaged or destroyed."
Defendant-Intervenors' Exh. 7 (attached as Appendix 1 to Plaintiff National
Wildlife Federation's Statement of Points and Authorities in Support of Its
Standing To Proceed (Aug. 22, 1988)).

3
    See, e. g., May v. Department of the Air Force, 777 F. 2d 1012, 1016
(CA5 1985); First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766
F. 2d 1007, 1011 (CA7 1985); Maldonado v. Ramirez, 757 F. 2d 48, 51 (CA3
1985); Galindo v. Precision American Corp., 754 F. 2d 1212, 1216 (CA5
1985).

4
    See, e. g., App. 123-139 (Declaration of Jack Kelly).

5
    The areas harmed or threatened by mining and associated activities may
extend well beyond the precise location where mining occurs.  See n. 2,
supra.

6
    Five supplemental affidavits were filed.  The first was submitted by
Peggy Kay Peterson, in clarification of her earlier affidavit: "A
substantial portion of the lands which I use . . . are identical to those
lands" newly opened to mining in the South Pass-Green Mountain area.
Peterson Supplemental Affidavit 3.  Ms. Peterson also asserted that "U. S.
Energy Corporation has filed a mine permit application with the Bureau and
Department, (U. S. Energy Application, TFN 2 4/86), which includes a
proposal to mine a significant portion of the federal lands which I use for
recreational purposes and aesthetic enjoyment."  Id., at 2-3.  The other
affiants were NWF members David Doran, Merlin McColm, Stephen Blo meke, and
Will Ouellette.  These individuals identified termination orders that had
opened to mining particular tracts of land used by the affiants for
recreation and aesthetic enjoyment.
    The Government does not concede that the supplemental affidavits
established with certainty the Federation's standing; it contends that
further discovery might show the affiants' allegations to be untrue.  The
Government does concede, however, that the supplemental affidavits were not
facially deficient.  Tr. of Oral Arg. 19.

7
    Rule 56(c) provides that when a motion for summary judgment is filed,
the "adverse party prior to the day of hearing may serve opposing
affidavits."  Under Rule 56(e), the District Court "may permit affidavits
to be supplemented or opposed by depositions, answers to interrogatories,
or further affidavits."  Rule 6(d) states: "[W]hen a motion is supported by
affidavit, . . . opposing affidavits may be served not later than 1 day
before the hearing, unless the court permits them to be served at some
other time."  The District Court's authority to permit service "at some
other time" is governed in turn by Rule 6(b), which provides that when an
act is required to be performed by a specified time, the District Court may
"upon motion made after the expiration of the specified period permit the
act to be done where the failure to act was the result of excusable
neglect."  See 4A C. Wright, A. Miller, & M. Kane, Federal Practice and
Procedure MDRV 1165, p. 475 (2d ed. 1983) (Rule 6(b) "gives the court
extensive flexibility to modify the fixed time periods found throughout the
rules, whether the enlargement is sought before or after the actual
termination of the allotted time").

8
    The Court of Appeals' discussion of standing occurred in the context of
a motion to dismiss and therefore, by itself, might not assure NWF that it
had made a sufficient showing to withstand a motion for summary judgment.
But the Court of Appeals, like the District Court before it, also held that
the Federation's showing of injury, as reflected in the Peterson and Erman
affidavits, provided an adequate basis for a preliminary injunction.  As
the second Court of Appeals panel concluded, "the burden of establishing
irreparable harm to support a request for a preliminary injunction is, if
anything, at least as great as the burden of resisting a summary judgment
motion on the ground that the plaintiff cannot demonstrate
`injury-in-fact.' "  278 U. S. App. D. C., at 330, 878 F. 2d, at 432
(emphasis omitted).  When the first panel affirmed the District Court's
entry of a preliminary injunction, Judge Williams' separate opinion,
concurring and dissenting, stated that "the specificity required for
standing allegations to secure a preliminary injunction will normally be no
less than that required on a motion for summary judgment."  266 U. S. App.
D. C., at 264, 835 F. 2d, at 328.

9
    At the hearing itself Fred R. Disheroon, the Government's attorney,
argued at length on other points before turning to the issue of standing.
He began that portion of his argument by observing that "perhaps the court
doesn't want to hear me argue standing, but I think it is imperative that I
address that in the context of this case."  Transcript of Motions Hearing
43 (July 22, 1988).

10
    The supplemental affidavits were submitted as an attachment to the
supplemental legal memorandum on standing requested by the District Court.
At the time of their submission, NWF stated only that "NWF now has
submitted declarations on behalf of other members of NWF who have been
injured by the challenged actions of federal defendants."  Plaintiff
National Wildlife Federation's Statement of Points and Authorities in
Support of Its Standing To Proceed 18, n. 21 (Aug. 22, 1988).  However, in
its reply memorandum on the issue, NWF addressed the contention of the
Government and the defendant-intervenor that the affidavits should be
ignored as untimely filed.  NWF stated that "plaintiff heretofore, has
relied on the court's previous rulings on NWF's standing.  In its motion
for a protective order against additional discovery, NWF argued that its
standing had already been proven on the basis of the affidavits of Mr.
Green walt, Ms. Peterson, and Mr. Erman.  The court agreed and entered the
requested protective order.  If the court intends to reverse its prior
ruling, then NWF respectfully requests that it should be given adequate
opportunity to supplement the record."  Plaintiff National Wildlife
Federation's Reply Memorandum in Support of Its Standing To Proceed 17, n.
16 (Sept. 14, 1988).  The Federation also noted that Circuit precedent
permitted the filing of supplemental affidavits on standing issues, even on
appeal.  Ibid., citing National Wildlife Federation v. Hodel, 268 U. S.
App. D. C. 15, 24, 839 F. 2d 694, 703 (1988).  NWF offered the further
explanation that "Ms. Peterson has supplemented her affidavit to include
new information regarding a mine application which has been filed by U. S.
Energy Corporation that includes a proposal to mine lands within the area
of South Pass/Green Mountain previously closed to mining.  For the record,
NWF initially was told by officials of the Bureau of Land Management that
the U. S. Energy mine application did not include any lands covered by the
court's preliminary injunction.  Otherwise, NWF would have supplemented Ms.
Peterson's affidavit earlier."  Statement of Points, at 12-13, n. 13.
    Along with its Reply Memorandum, NWF submitted an additional filing
entitled Plaintiff National Wildlife Federation's Memorandum in Opposition
to Defendant-Intervenors' Motion To Strike Plaintiff's Supplementation of
the Record (Sept. 14, 1988).  That filing stated: "For the reasons stated
in [the reply memorandum] at page 17, n. 16, plaintiff requests that
defendant-intervenors' motion to strike be denied."  (In light of this
separate submission, addressed solely to the question whether the
supplemental affidavits should be considered, and expressly referring to n.
16 of the Reply Memorandum, it is difficult to fathom the Court's assertion
that NWF's request was "buried" in the Federation's filings.  See ante, at
23, n. 5.)  This separate filing, in conjunction with the Reply Memorandum,
satisfied Rule 6(b)'s requirement that the request for enlargement of time
be made "upon motion."  Though neither of these filings was expressly
denominated a "motion," they met the requirements of Rule 7(b): they were
submitted in writing, were signed by counsel, "state[d] with particularity
the grounds therefor," and unambiguously "set forth the relief . . .
sought."  See Campos v. LeFevre, 825 F. 2d 671, 676 (CA2 1987) ("no
particular form of words is necessary to render a filing a `motion.'  Any
submission signed by a party that may fairly be read as a request to the
district court to exercise its discretionary powers . . . should suffice"),
cert. denied, 484 U. S. 1014 (1988); Smith v. Danyo, 585 F. 2d 83, 86 (CA3
1978) ("Rule 7(b) requires no more than that . . . a motion `state with
particularity the grounds' upon which it is based.  Plainly, an affidavit
which is filed to obtain an order disqualifying a judge satisfies the
requirements of Rule 7(b). . . .  The . . . failure to type in the word
`motion' above the word `affidavit' in no way detracts from the notice
which the affidavit gave of the nature of the application").  Cf. Snyder v.
Smith, 736 F. 2d 409, 419 (CA7) ("The Federal Rules are to be construed
liberally so that erroneous nomenclature in a motion does not bind a party
at his peril"), cert. denied, 469 U. S. 1037 (1984); Miller v.
Transamerican Press, Inc., 709 F. 2d 524, 527 (CA9 1983) ("The court will
construe [a motion], however styled, to be the type proper for the relief
requested"); 2A Moore's Federal Practice MDRV 7.05, at 7-16 to 7-17 (1989)
("it is the motion's substance, and not merely its linguistic form, that
determines its nature and legal effect").

11
    Accord, Allied Chemical Corp. v. Mackay, 695 F. 2d 854, 856 (CA5 1983)
("Rule 56(c) does not require an oral hearing in open court.  Rather, it
contemplates notice to the party opposing the motion and an adequate
opportunity to respond to the movant's arguments"); Bratt v. International
Business Machines Corp., 785 F. 2d 352, 363 (CA1 1986).

12
    The District Court subsequently established a schedule for the
supplemental briefing.  NWF was requested to file its opening memorandum by
August 22, 1988; the Government and intervenors were to file memoranda in
opposition by September 1; and NWF's reply was due by September 14.  Order
of July 27, 1988.

13
    The District Court mentioned these affidavits in a single footnote:
"Plaintiff, in addition to its memorandum filed August 22, 1988 has
submitted additional evidentiary material, including declarations from four
of its members.  These submissions are untimely and in violation of our
Order.  We decline to consider them.  See Federal Defendants' Reply to
Plaintiff's Statement of Points and Authorities in Support of Its Standing
to Proceed, at 1 n. 1."  699 F. Supp. 327, 328, n. 3 (D. C. 1988).

14
    Rule 6(b), for example, which generally gives the District Court broad
authority to grant enlargements of time, establishes the limitation that
the court "may not extend the time for taking any action under Rules 50(b)
and (c)(2), 52(b), 59(b), (d) and (e), 60(b), and 74(a), except to the
extent and under the conditions stated in them."

15
    The term "withdrawal review program" repeatedly has been used in BLM
documents.  See, e. g., Plaintiff's Exhs. 1, 3, 10, 11, 15, 18, 19 (filed
July 15, 1985).  At oral argument on the cross-motions for summary
judgment, counsel for the Government acknowledged: "It is true, BLM
referred to this review process as a land withdrawal review program."
Transcript of Motion Hearing 40 (July 22, 1988).  Counsel went on to say,
"but I suggest that using a word, calling it a program, doesn't make a
program in the sense that it is being challenged here."  Ibid.  That
assertion, though inelegant, seems essentially correct: an agency's
terminology is not decisive in determining whether an alleged illegality is
systemic or site- specific.

16
    The majority also suggests that the agency actions challenged in this
suit may not be ripe for review.  See ante, at 17-19.  Since the issue of
ripeness has not been briefed or argued in this Court, nor passed on by the
courts below, I need not address it.  I do note, however, that at the
outset of this case the Government made precisely the opposite argument,
asserting that a preliminary injunction should be denied on the ground that
NWF's claims were barred by laches.  The Government contended: "[T]he
Federation offers no explanation why, despite its detailed knowledge of
BLM's revocation and termination activities, it has waited so long to
institute litigation."  Defendants' Memorandum in Opposition to Plaintiff's
Motion for Preliminary Injunction 26 (Aug. 22, 1985).
    I also decline to address the adequacy of the affidavit submitted by
Lynn Greenwalt, since the Court of Appeals did not pass on that issue.
